Sunday, January 25, 2015

Arbitrator: Homicide detective's inattention to cases provides just cause for termination

Grievant was employed as a detective in the Houston Police Department, employed in the homicide division. Upon his transfer out of that division his Lieutenant discovered that in a significant number of grievant's cases had not been updated and, on further investigation, determined that grievant had failed to follow up on a number of cases. The investigation concluded that grievant had also falsified records by claiming to have referred cases to the prosecutor or the grand jury when, in fact, he had not. 

Grievant's employment was terminated for, inter alia, inattention to duties, for untruthfulness concerning the records and reports, and for insubordination (in failing to follow instructions to bring in all files). Grievant challenged the decision and the dispute was submitted to Arbitrator Lynne Gomez for resolution. The Union acknowledged that grievant had not timely updated his files, but maintained that the City had failed to establish the other charges. It claimed that while some discipline was warranted, termination ("indefinite suspension") was unwarranted.

Arbitrator Gomez found that the City had established its charges. She rejected grievant's claim that his case load was excessive and his denial that he had been untruthful.

 Upholding the termination Arbitrator Gomez concluded:

The Union zealously represented the Grievant. However, the totality of the credible evidence presented demonstrates that just cause existed for issuance of the Indefinite Suspension, and that Chief McClelland's decision should not be disturbed. The full impact of the Grievant's misconduct may never be known, but the evidence demonstrated that it allowed murderers to remain on the streets; caused unnecessary frustration and heartache to the families of victims; and led Houston's citizens to question the Department's integrity. The Grievant's misconduct and lack of concern for victims and their families has also caused embarrassment to the Department and, specifically, to Homicide investigators, whose ability to solve cases may be hampered by diminished trust and confidence in the Department. 

The Houston Chronicle reports on the case here and links to the award of Arbitrator Gomez here.

Sunday, January 18, 2015

"Functus officio" precludes arbitrator from substituting new award for an earlier one

Ruling on cross motions for summary judgment, the District Court for the Middle District of Florida addressed the "unique question" of:

whether an arbitrator, having finally addressed the merits of a CBA grievance, may reconsider and substitute an award which substantively changes the result, after being mistakenly persuaded that he had addressed an issue which was not to be arbitrated. 

Concluding that the arbitrator's first award was intended to be final, the Court determined that the doctrine of functus officio precluded the arbitrator from reconsidering the award and substituting a new one.

The dispute arose after several employees of Verizon Florida were declared surplus. The cba provided (in Article XI, Section 2) that surplus employees could bump junior employees within the same or lower wage progression schedule. Article XI also provided that an employee seeking to bump another

must have the ability to perform any job which he/she seeks to obtain through bumping. If it is a job which the employee has previously held, the employee will be allowed a reasonable period of time for re-familiarization and, if the job is one which he/she has not previously held, the employee must be able to perform the job with minimum additional training.

At the arbitration hearing the parties declined to stipulate an issue. The arbitrator framed the issue and, after reviewing the evidence and the cba, concluded that two of the nine grievants had previously held the position they sought to bump into and that they should have been allowed to bump into those positions. He rejected the grievance as it applied to the other grievants.

After the award, the Union requested clarification, maintaining that two additional employees had also previously held the position they sought to bump into and should therefore have been allowed to bump. Verizon opposed this request and also sought reconsideration, claiming that the issue of whether grievant's had previously held the job they sought to bump into was not properly before the arbitrator, and that the only issue was whether the grievants would require more than minimal training to perform the job. Three days after Verizon sought reconsideration the arbitrator issued a substituted decision, captioned "Order on Cross-Motions for Clarification/Change and Substituted Arbitrator's Award. In the new award the arbitrator indicated he had been persuaded that his earlier award had, in fact, relied on a contract provision not submitted for consideration. His new award deleted reference to whether the grievants' had previously held the position and rejected the grievances of all employees. 

The Union sought to vacate the second award while Verizon sought to confirm the second. 

Ruling on both motions the Court concluded:

the issue which the original arbitration award addressed had been presented to the arbitrator through the Union's broadly worded grievance and he was therefore well within his authority in his original determination of the merits. And contrary to the common law doctrine of functus officio, the arbitrator exceeded his authority when he reconsidered and issued the substituted award. The substituted award is therefore due to be vacated and the initial award confirmed.

The court explained:

The doctrine of functus officio ("a task performed") provides that an arbitrator may not revisit the merits of an award once it has issued. Office & Prof'l Emps. Int'l Union, Local No. 471 v. Brownsville Gen. Hosp., 186 F.3d 326, 331 (3d Cir. 1999). Because the arbitrator acts only as judge for a particular case, the doctrine arises "based on the analogy of a judge who resigns his office and, having done so, naturally cannot rule on a request to reconsider or amend his decision." Glass, Molders v. Excelsior Foundry Co., 56 F.3d 844, 846-47 (7th Cir.1995) (observing that an additional rationale is an arbitrator's susceptibility to ex parte communications, absent the constraint of judicial ethics). There are three established exceptions to functus officio, which allow an arbitrator to: (1) correct a mistake that is apparent on the face of the award; (2) rule upon an issue presented but not adjudicated; and (3) clarify an ambiguity in an otherwise complete award. Brown v. Witco Corp., 340 F.3d 209, 219 (5th Cir. 2003); Office & Prof. Emps., 186 F.3d at 331.

Finding that the question initially decided by the arbitrator was within the issue submitted, and that none of the exceptions applied, the court concluded that the arbitrator was without authority to reconsider his decision as Verizon had requested. 

The Court's opinion in IBEW, Local 824 v. Verizon Florida,LLC can be found here.

Sunday, January 11, 2015

Retroactive cba makes post expiration grievance arbitrable

  The cba between the City of Beverly, MA and AFSCME Council 93 had a term from 1992-2002. The agreement also contained an evergreen clause that effectively extended all contract provisions until a successor agreement was entered into. In Boston Housing Auth. v. National Conference of of Firemen & Oilers, Local 3, decided in 2010,  the Mass. Supreme Judicial Court held that evergreen provisions which extended the cba beyond three years were barred by statute.

In 2003, before a successor agreement had been entered inti,  a bargaining unit employee of the City was dismissed. The Union grieved and ultimately arbitrated the dispute. The arbitrator, in an award issued after the Court's decision in Firemen & Oilers, determined that the Court's decision should not be applied retroactively and sustained the grievance. The City sought to set aside the award and the Superior court vacated the decsion, concluding that there was no contract in effect at the time of the dismissal and that the Arbitrator was thus without authority to rule on the dispute.

On the Union's appeal, the Appeals Court  reversed and upheld the Arbitrator's decision.

Initially the Court acknowledged  that it is "axiomatic" that if there is no contract in effect requiring arbitration at the time a disputed event occurs an arbitrator is without jurisdiction to arbitrate the matter. After discussing whether the Firemen & Oilers decision should be applied to preexisting disputes, the Court found it unnecessary to resolve that issue. It concluded:

In any event, although we tend to agree with the arbitrator that Firemen & Oilers does not apply retroactively, and, therefore, would not invalidate the evergreen clause included in the 1999-2002 CBA, we need not decide the issue. The 2002-2005 CBA, by its plain terms, applied to [Grievant's]'s termination — namely, the CBA was explicitly intended to operate retroactively to July 1, 2002, even though it was executed in June, 2005, and the instant dispute concerning [Grievant's] termination arose during the life of that CBA. The parties' explicit intention to render the CBA retroactive belies the city's argument that it would be unfair or unjust to apply the CBA to [Grievant's] termination. If we were to conclude that the CBA does not have retroactive effect, we would undermine the parties' clearly stated intentions; in accordance with basic rules of contract interpretation, we refuse to do so here.

The  decision of the Appeals Court can be found here.